Service Animals, Emotional Support Animals, and the FHA

I recently came across a post on a BiggerPockets Fan Group on Facebook in which someone asked whether they could charge additional rent for Service Animals and Emotional Support Animals. The responses made me realize that there are likely many landlords out there who are violating federal law and either don’t realize it or don’t care. With so much misinformation out there, I figure I’d write this post to provide some guidance and clarification. This post is not meant to be legal advice and if you have questions, you should seek the advice of counsel.

I saw many responses to this post stating “It depends on state law.” This is simply not true. The Fair Housing Act (FHA) is a federal law that prohibits discrimination in the sale or rental of housing. If your state has a law that conflicts with the FHA, under the doctrine of preemption and the Supremacy Clause of the U.S. Constitution, federal law preempts state law; therefore, the federal law controls and that state law is essentially null and void.

There are several disability rights laws that impact housing, but I am going to focus on the FHA in this post. The FHA prohibits discrimination in housing based on disability (among others), and requires housing providers to make reasonable accommodations to individuals with disabilities. This law allows individuals with disabilities to request reasonable accommodations for service animals and other assistance animals, which includes Emotional Support Animals.

On January 28, 2020, HUD released a notice providing guidance on FHA and animals as a reasonable accommodation. In its guidance, HUD explained, “Assistance animals are not pets. They are animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities.” The guidance also clarifies that housing providers may not charge a deposit or fee for assistance animals. They may, however, charge tenants for damage caused by such assistance animals or deduct said damages from typical security deposits.

I understand the issue with Emotional Support Animals is out of control, and while you cannot ask about a specific disability, you can ask for reliable documentation for such Emotional Support Animal. The January 28, 2020 HUD guidance acknowledged that there are many websites that sell “certificates” or “registrations,” and stated that “such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.” If proper reliable documentation is provided, however, save yourself the headache and don’t try to charge extra fees.